I have practiced in Virginia's appellate courts for over 40 years, and practiced family law almost exclusively since 1983. Since 1991 I have analyzed every significant Virginia family law appeal case for the Virginia State Bar's "Family Law News" quarterly. This blog contains both past and current case notes. I try to comment on the ongoing development of the law, and help other lawyers, journalists and the public understand individual cases. Individual case notes aimed to be accurate when written but are not updated as the law evolves. - Richard Crouch

October 12, 2011

Campbell case: Wife shoots husband, gets his family business reclassified as marital

ALIMONY FACTORS – WIFE SHOOTING HUSBAND – EFFECT OF ADMISSION – APPEALS — “LAW OF THE CASE” – PROPERTY DIVISION – MARITAL AND SEPARATE – PRESERVING SEPARATE IDENTITY – PROPORTIONS AND PERCENTAGES – GIFTS. Perhaps it is not difficult to see why the Court of Appeals had to write a 35-page (unpublished with dissent) opinion. It is, though, difficult to sort out the tangled fact situation, and even harder to say anything useful or helpful – let alone clever – about this (we hope) oddball Albemarle case. Be advised, though, that the Court of Appeals does, in this post-remand appeal in Campbell v. Campbell, 49 Va. App. 498, ___ S.E.2d ___ (2007), actually say that you can deny spousal support, and even divide property more favorably to a husband, for conduct contributing to the dissolution of the marriage. You could say that wife here did that, since she admittedly shot the husband “multiple times,” so that he ended up in a coma, and needed 22 days in the hospital. Of course she had her various accusations against him as well, and later tried to retract her admission and blame the shooting on her son, but that didn’t work. The big fight was apparently about the property division, as husband had been in partnership with his brother in a sawmill business since 1957, married wife in 1973, and in 1977 opened another sawmill and finally incorporated in 1983. The parties finally separated rather dramatically with the aforesaid shooting incident in 1996. The thing has been going through the courts at least since early 2002. Wife had argued that there was an agreement with her husband to give her his first sawmill if he didn’t drop the divorce litigation, but after years of hearing this, the trial court said that she had failed to prove an enforceable agreement there. The 2010 divorce decree (after remand) adjusted her share of property from 28% to 38% and increased the valuation of the first lumber business by almost $8,000 (but we are talking multi-millions here). Husband kept on alleging that his stock in the two companies had to be separate. Though husband appealed the inclusion of that stock in marital property as well as the trial court’s valuation, the Court of Appeals this time affirmed, and as to the wife’s attempt to relitigate who shot husband, “law of the case” precludes that. (Why? Because she didn’t try to raise that particular question in her last appeal). Yes there is a “material change of facts exception,” but it does not apply if we see a party creating conflicting testimony for strategic purposes. The trial court had actually ruled that the shooting amounted to constructive desertion, and actually terminated pendente lite alimony on that ground, and the Court of Appeals does not disturb that, saying the Court properly applied §20-107.3(E) factors. The Court this time upheld the marital classification of the stock in both companies, as well as its valuation, reasoning that the husband failed to prove that his pre-marital interest in the business or businesses had retained its separate identity, since he had acquired numerous assets in various ways. It classified the $3.2 million appreciation during the marriage as marital, since his marital property and his personal efforts contributed. Money for the second lumber company was supplied by a loan secured on marital property, and he did not prove that he repaid the loans out of separate property. And in this $17 million-assets case, the Court of Appeals says that the $7,826 increase in valuation was “de minimis.”

Judge Powell dissents, pointing out several of what he considers errors in the majority analysis. It was not right to focus on the date of incorporation when classifying the original stock as marital, since the business was started way before the marriage. Nor do individual equipment assets of the business justify calling it all marital, since §20-107.3(A)(3)(d) gives a method for making these determinations, and that method requires wife to prove the increased value supposedly contributed by marital property and/or her personal efforts. Campbell v. Campbell(unpublished), 26 VLW 306 (8/9/11).

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Campbell case: Wife shoots husband, gets his family business reclassified as marital

ALIMONY FACTORS – WIFE SHOOTING HUSBAND – EFFECT OF ADMISSION – APPEALS — “LAW OF THE CASE” – PROPERTY DIVISION – MARITAL AND SEPARATE – PRESERVING SEPARATE IDENTITY – PROPORTIONS AND PERCENTAGES – GIFTS. Perhaps it is not difficult to see why the Court of Appeals had to write a 35-page (unpublished with dissent) opinion. It is, though, difficult to sort out the tangled fact situation, and even harder to say anything useful or helpful – let alone clever – about this (we hope) oddball Albemarle case. Be advised, though, that the Court of Appeals does, in this post-remand appeal in Campbell v. Campbell, 49 Va. App. 498, ___ S.E.2d ___ (2007), actually say that you can deny spousal support, and even divide property more favorably to a husband, for conduct contributing to the dissolution of the marriage. You could say that wife here did that, since she admittedly shot the husband “multiple times,” so that he ended up in a coma, and needed 22 days in the hospital. Of course she had her various accusations against him as well, and later tried to retract her admission and blame the shooting on her son, but that didn’t work. The big fight was apparently about the property division, as husband had been in partnership with his brother in a sawmill business since 1957, married wife in 1973, and in 1977 opened another sawmill and finally incorporated in 1983. The parties finally separated rather dramatically with the aforesaid shooting incident in 1996. The thing has been going through the courts at least since early 2002. Wife had argued that there was an agreement with her husband to give her his first sawmill if he didn’t drop the divorce litigation, but after years of hearing this, the trial court said that she had failed to prove an enforceable agreement there. The 2010 divorce decree (after remand) adjusted her share of property from 28% to 38% and increased the valuation of the first lumber business by almost $8,000 (but we are talking multi-millions here). Husband kept on alleging that his stock in the two companies had to be separate. Though husband appealed the inclusion of that stock in marital property as well as the trial court’s valuation, the Court of Appeals this time affirmed, and as to the wife’s attempt to relitigate who shot husband, “law of the case” precludes that. (Why? Because she didn’t try to raise that particular question in her last appeal). Yes there is a “material change of facts exception,” but it does not apply if we see a party creating conflicting testimony for strategic purposes. The trial court had actually ruled that the shooting amounted to constructive desertion, and actually terminated pendente lite alimony on that ground, and the Court of Appeals does not disturb that, saying the Court properly applied §20-107.3(E) factors. The Court this time upheld the marital classification of the stock in both companies, as well as its valuation, reasoning that the husband failed to prove that his pre-marital interest in the business or businesses had retained its separate identity, since he had acquired numerous assets in various ways. It classified the $3.2 million appreciation during the marriage as marital, since his marital property and his personal efforts contributed. Money for the second lumber company was supplied by a loan secured on marital property, and he did not prove that he repaid the loans out of separate property. And in this $17 million-assets case, the Court of Appeals says that the $7,826 increase in valuation was “de minimis.”

Judge Powell dissents, pointing out several of what he considers errors in the majority analysis. It was not right to focus on the date of incorporation when classifying the original stock as marital, since the business was started way before the marriage. Nor do individual equipment assets of the business justify calling it all marital, since §20-107.3(A)(3)(d) gives a method for making these determinations, and that method requires wife to prove the increased value supposedly contributed by marital property and/or her personal efforts. Campbell v. Campbell(unpublished), 26 VLW 306 (8/9/11).